Affirmed and Memorandum Opinion filed May 30, 2024. 

In The

Fourteenth Court of Appeals

NO. 14-22-00237-CR

DAVID LEE HART, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1753579

MEMORANDUM OPINION

A jury found appellant guilty of aggravated sexual assault of a child—his 

thirteen-year-old stepsister. The trial court sentenced him to thirty-five years’ 

confinement. In a single issue, appellant contends that the trial court erred by 

overruling his hearsay objection to the following portion of the complainant’s 

admitted medical records, which relays the complainant’s mother’s statement to a 

nurse: “But my other daughter said that she heard heavy breathing coming from 

where [appellant and the complainant] were.” Appellant contends that the 
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statement was hearsay-within-hearsay and not admissible under the exception for 

medical diagnosis. Assuming without deciding that appellant preserved error, we 

hold that any error in the admission of these statements was harmless.

I. Legal Principles

Generally, the erroneous admission of hearsay is non-constitutional error. 

See Rosales v. State, 548 S.W.3d 796, 808 (Tex. App.—Houston [14th Dist.] 2018, 

pet. ref’d). Non-constitutional error regarding the admission of evidence requires 

reversal only if the error affects the defendant’s substantial rights. Gonzalez v. 

State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018); see also Tex. R. App. 

P. 44.2(b); Tex. R. Evid. 103(a). Error affects substantial rights if the error had a 

substantial and injurious effect or influence in determining the jury’s verdict. 

Gonzalez, 544 S.W.3d at 373. If we have a fair assurance from examining the 

record as a whole that the error did not influence the jury, or had but a slight effect, 

we will not overturn the conviction. Id. In making this determination, we 

consider: (1) the character of the error and how it might be considered in 

connection with other evidence; (2) the nature of the evidence supporting the

verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) 

whether the State emphasized the error. Id. Often the erroneous admission of 

evidence is harmless if similar evidence is admitted without objection. See 

Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010); see also 

Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (“It is well 

established that the improper admission of evidence does not constitute reversible 

error if the same facts are shown by other evidence which is not challenged.”

(quotation omitted).
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II. Analysis

Although appellant objected to portions of the medical records, he did not 

object when the nurse who had examined the complainant testified and repeated 

the statement about the mother’s daughter hearing heavy breathing. Because the 

nurse’s testimony provided substantially the same evidence as the report, any error 

the trial court might have made by admitting the statement in the report was 

harmless. See Estrada, 983 S.W.3d at 302 n.29; Leday, 983 S.W.2d at 717; see 

also Frattarola v. State, No. 14-18-00525-CR, 2019 WL 3956170, at *1 (Tex. 

App.—Houston [14th Dist.] Aug. 22, 2019, pet. ref’d) (mem. op., not designated 

for publication) (harmless error when the health care provider testified about the 

statements in the report); Hernandez v. State, No. 05-17-00560-CR, 2018 WL 

2316026, at *13 (Tex. App.—Dallas May 22, 2018, pet. ref’d) (mem. op., not 

designated for publication) (same); Lamerand v. State, 540 S.W.3d 252, 257 (Tex. 

App.—Houston [1st Dist.] 2018, pet. ref’d) (same).1

Moreover, although the complainant denied sexual conduct with appellant

and did not testify at trial, other evidence of appellant’s guilt was substantial:

• Appellant confessed to having sex with the complainant in a 

recorded interview with police. The recording was admitted as an 

exhibit and played for the jury. He said, “My penis was 

penetrating her vagina.” He said they had sex four or five times 

before being caught. He knew it was wrong because she was a 

minor.

• DNA analysis showed “very strong support” for the proposition 

that appellant contributed to sperm fractions found on swabs from 

the complainant’s vagina and her shorts. It was at least seventy 

quadrillion times more likely for the sperm to have originated from 

appellant compared to an unknown individual.

1 We cite unpublished opinions not for precedential value, but for illustrative and

comparative purposes. See Roberson v. State, 420 S.W.3d 832, 837 (Tex. Crim. App. 2013).
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• The jury heard evidence of appellant’s extraneous sexual offenses 

committed against his younger female cousins. One of those 

cousins testified that appellant touched her private parts under her 

clothes when she was about seven years old and appellant was 

about eleven. Regarding the second cousin, appellant’s uncle 

testified that he walked in on appellant, then age fourteen, sexually 

assaulting the uncle’s five-year-old daughter.

Finally, we note that the State did not mention the “heavy breathing” statement 

during closing arguments.

III. Conclusion

Considering the entire record, we have a fair assurance that the alleged error 

did not influence the jury or had but a slight effect. Appellant’s sole issue is 

overruled, and the trial court’s judgment is affirmed.

/s/ Ken Wise

Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.

Do Not Publish — Tex. R. App. P. 47.2(b)